Section 105 CPC deals with orders that are not independently appealable. It allows certain errors or defects in such orders to be challenged in an appeal against the final decree, subject to the conditions prescribed by the provision.
Meaning of Section 105 CPC
Not every order passed during a civil proceeding is separately appealable.
However, if an interlocutory order contains an error that has affected the decision of the case, the aggrieved party may generally raise that objection while challenging the decree in an appeal.
Section at a Glance
| Particular | Details |
|---|---|
| Section | Section 105 CPC |
| Subject | Other non-appealable orders |
| Nature | Appellate procedure |
| Main purpose | Allows qualifying errors to be raised in decree appeal |
| Related provision | Section 104 |
Core Rule
Section 105(1) provides that, except where otherwise expressly provided, no appeal shall lie from any order made by a court in the exercise of its original or appellate jurisdiction.
However, the correctness of such an order may be challenged in an appeal from the decree, where the error has affected the decision of the case.
Practical Example
Suppose a trial court passes an interlocutory order refusing to admit certain evidence, and that order is not independently appealable.
If the refusal materially affects the final decision, the aggrieved party may raise the objection in an appeal against the final decree.
Section 105(2) — Remand Orders
Section 105(2) deals specifically with orders of remand.
Where a party could have appealed against a remand order but did not do so, that party may be precluded from disputing the correctness of the remand order in an appeal from the final decree.
This provision must be read with Order XLI Rule 23 and Rule 23-A.
Section 105 and Section 104
| Section 104 | Section 105 |
|---|---|
| Identifies specified appealable orders | Deals with orders not independently appealable |
| Provides a limited immediate appeal | Allows qualifying objections in decree appeal |
| Read with Order XLIII | Operates in relation to the final decree |
Important Case Law
Kiran Singh v. Chaman Paswan, AIR 1954 SC 340
The Supreme Court discussed the distinction between procedural defects and jurisdictional defects and emphasised that jurisdictional issues have a different legal significance from ordinary procedural irregularities.
Satyadhyan Ghosal v. Deorajin Debi, AIR 1960 SC 941
The Supreme Court explained the principle of finality of decisions during litigation and the circumstances in which previously decided matters may or may not be reopened.
Practical Importance
Section 105 is important because a party does not necessarily lose every objection merely because an interlocutory order is not independently appealable.
The key question is whether the error in the order has affected the decision of the case and can therefore be challenged in an appeal from the decree.
Importance for Law Students and Judiciary Exams
What to Remember
- Section 105 concerns orders from which no independent appeal lies.
- Such orders may be challenged in an appeal from the decree if the statutory requirements are satisfied.
- The error must have affected the decision of the case.
- Section 105(2) specifically deals with remand orders.
- Section 104 should be read alongside Section 105.
Key Legal Principles
- Non-appealable interlocutory orders generally cannot be challenged through an independent appeal.
- Their correctness may, in appropriate cases, be questioned in an appeal against the decree.
- The error must have affected the decision of the case.
- Section 105(2) imposes a specific restriction concerning remand orders.
ALSO READ: Section 104 – Orders from Which Appeal Lies
Key Takeaways
| Concept | Principle |
|---|---|
| Section | Section 105 CPC |
| Subject | Other/non-appealable orders |
| Independent appeal | Generally not available |
| Later challenge | Possible in decree appeal if statutory conditions are met |
| Special rule | Remand orders under Section 105(2) |
